Prior & Prior (No 3)
[2023] FedCFamC1F 311
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Prior & Prior (No 3) [2023] FedCFamC1F 311
File number: MLC 8811 of 2015 Judgment of: BENNETT J Date of judgment: 14 April 2023 Catchwords: FAMILY LAW- CHILD SUPPORT- where departure order is made when both liable parent and payee are resident in Australia- where liable parent leaves Australia and is now permanently resident in the United States of America- where the United States of America is a reciprocating jurisdiction- where liable parent seeks a discharge of the departure order and reversion to administrative assessment of child support- where no child support estimate is submitted as part of the evidence at the hearing- where liable parent is required to express the amount he wants to pay by using child support calculator.
FAMILY LAW- PARENTING- where child is permitted to reside with the father in the United States of America for seven months- where father was required to specify arrangements for return- where father fails or neglects to comply by providing flight details- where father equivocates on arrangements for return and alleges that child (now 15 years old) refuses to return to Australia- where independent children’s lawyer requested to participate at next hearing in relation to ascertaining the views of the child.
Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 14 April 2023 Place: Melbourne (via MS Teams) Counsel for the Applicant: Litigant in person Counsel for the Respondent: Litigant in person Counsel for the Independent Children’s Lawyer: No appearance ORDERS
MLC 8811 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PRIOR
Applicant
AND: MS PRIOR
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
BENNETT J
DATE OF ORDER:
14 APRIL 2023
THE COURT ORDERS THAT:
1.Subject to paragraph 2 hereof, this matter be adjourned to 2 May 2023 at 10:00 am (“the adjourned date”).
2.IT IS REQUESTED THAT the independent children’s lawyer, personally or by Counsel, participate on the adjourned date and there be liberty to the independent children’s lawyer to seek an administrative adjournment of the adjourned date to an alternative Tuesday or other day (preferably not Monday or Friday) in the event that 2 May 2023 is not convenient.
3.Henceforth, and until a notice of address for service is filed by the relevant party to the contrary, the address for that party appear in the records of the court as follows:-
(a)as to the mother, S Street, Suburb T with her email and telephone number remaining unchanged from the previous address for service; and
(b)as to the father, E Street, U State with his email and telephone number remaining unchanged from the previous address for service.
4.Within 14 days the mother file and serve an affidavit in which she provides details of her taxable income for the years ending 30 June 2019, 2020, 2021, 2022 AND IT IS NOTED THAT this is notwithstanding that the mother has previously complied with orders of the court for the production of copy income tax returns.
5.Within 14 days of compliance by the mother with the preceding paragraph the father filed and serve an affidavit to which is annexed an estimated child support assessment prepared from the child support calculator/estimate facility offered by Services Australia on its website for the years ending 30 June 2019, 2020, 2021, 2022 which show the amount of child support which would be payable pursuant to an administrative assessment in each of those years.
6.The father forthwith make enquiries of Services Australia (formerly the Child Support Agency) of whether his status as a resident of the United States of America renders the child support assessment calculator/estimate inappropriate. If this is so, the father provide an estimate of child support based on the preferred calculator for overseas residents by the date specified in the preceding paragraph.
7.My reasons for decision be transcribed and when transcribed be settled and released to the parties.
AND IT IS NOTED BY THE COURT that this matter was listed for mention to clarify a matter relevant to the outstanding child support decision, currently reserved, but the mother and father raised parenting issues about X.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Prior & Prior (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J:
This matter comes before me as a mention date of the outstanding child support application in which my decision is reserved. The purpose of the mention was to obtain from the applicant an administrative assessment of child support represented in monetary terms. This is necessary because the father's application, and the amendments thereto, specify that he seeks a discharge of existing departure order and non-periodic child support and that the parties revert to an administrative assessment of child support. However, during the course of the hearing, which was truncated and interrupted by the Court’s consideration of urgent parenting matters, there was no quantification of what the father's liability would be pursuant to any administrative assessment. A complicating factor is at the time of the departure order the father was a resident of Australia but then moved to the United States of America where he has since resided on a permanent basis. It may be that an administrative assessment for the father as an overseas resident is different to an administrative assessment made if he is resident in Australia.
I have made orders which provide that the wife confirm her income for the last four financial years. The husband can then apply his income to the child support calculator or estimate program provided on the website for Services Australia. I note that applications for child support where the liable parent is in the United States of America, which is a reciprocating jurisdiction under our relevant regulations, should usually be made by what is called an international application for child support. I am not aware of whether there is an international child support calculator/estimate program, but if there is, then the father should use that.
As has customarily been the situation in these proceedings, the issue of child support was displaced by urgent parenting issues. Paragraph 4 of the Orders made by me on 17 October 2022 entitled X to travel to the United States of America for up to seven months. Paragraph 12 of the Order provided that:
By not later than 1 December 2022, the father advise the mother and the independent children's lawyer in writing of the date and precise travel arrangements for the return of [X] to Australia pursuant to paragraph 4 of this order.
It is common ground that the father has failed or neglected to comply with his obligations pursuant to paragraph 12 of the order made on 17 October 2022. After considerable toing and froing this morning, the father informed the Court that X left Australia and arrived in the United States of America in late 2022. Pursuant to paragraph 4 of the order X is, therefore, required to be returned to Australia before mid-2023. The father confirmed that was the case but said that he proposed making an application to vary that order so that X would not be required to return to Australia within the seven months allowed. The father informed the Court that X is very much enjoying his time in Australia, is doing exceptionally well at school where he is classed as an A student and is on track to attend CC University or like educational institution. X has had no contact with his mother or sister since leaving the mother's care in mid-2023.
I asked the father whether he would return X to Australia in accordance with the existing orders, and his response was that he will try to do so but will also try to have the orders changed prior to the date of return. Further, he has currently reserved flights for X to return to Australia in mid-2023 but proposes to delay those flights to a date closer to the required date of return. In short, the father was non-committed.
The father acknowledges that at the time I acceded to his application to have X go to the United States of America, I made it perfectly clear that, come what may, X was to be returned to Australia at the conclusion of the seven months. That is, it may be that upon arriving back in Australia X is permitted to return to the United States but that the Court was not in any way acceding to the then application of the father that X could remain in the United States pending the outcome of any application the father may wish to make for permanent relocation.
The father says that there are impediments to X's return to Australia in accordance with the Order of 17 October 2022. First, X has made application, or an application has been made on X's behalf, for a green card. The father described it as “difficult” for X to leave America pending his application for a green card being dealt with. The mother informed the Court that the green card was specifically raised in the proceedings before me and it was understood that green card would not be applied for by the father for the child during the temporary stay of seven months. My preliminary observation is that, in making an application for a green card for X, the father has erected the obstacle to return upon which he relies. The other difficulty to returning X to Australia is, according to the father, that the father has no passport. The father is an American citizen and has applied for a passport but does not have a passport and, therefore, does not have documents on which to travel.
X is now 15 years of age, having been born in 2008. In the event that the father fails or neglects to return X to Australia by mid-2023, the mother could conceivably make application pursuant to the Family Law (Child Abduction Convention) Regulations 1986 for the return of X to Australia. Indeed, she could do so earlier if there is an unambiguous statement by the father repudiating his responsibility to return X to Australia prior to mid-2023 (see Handbury & State Central Authority and Anor [2020] FamCAFC 5). Obviously any request by the mother under the 1980 Convention is time-sensitive.
I have requested that the independent children's lawyer, Ms Smith, participate on the adjourned date either personally or through counsel.
I would appreciate hearing from the independent children's lawyer whether she or counsel, such as Mr Thistleton, can speak with X at some future date. I am not envisaging that the independent children's lawyer would be the best conduit for X's views to be communicated to the Court. It may that she considers that Ms Q would be better placed given Ms Q’s status as an expert.
In response to specific questions, the father confirmed that after X arrived in the United States in late 2022, he did not attend school. They were staying at an Airbnb in City V, U State from late 2022 until early 2023. In early 2023, the father rented the house at which he and X now reside. There are no other residents to the home. X started as a freshman (Year 9) at W School in January 2023. W School is equipped to take students to the last year of their education, which is Year 12.
The mother has also moved residence. She now resides at S Street in Suburb T. Her address for service has been changed on the records of the Court by orders which I made today. She says that relocation of her household to Suburb T will provide X with many more opportunities and things that he wanted to pursue.
The mother wanted to inform the Court, and indirectly the father, of Y’s circumstances. Y’s health has not necessarily improved. She is under six departments with four different hospitals and has been diagnosed with COVID, which is some sort of autoimmune disease or deficiency. In mid-2022, she deferred her place in a course at X Institute. She is now doing study at BB University as a single subject not attached to a course. Apart from studying, Y is employed part-time and has been so since approximately late 2022.
This continues to be a troubling case and I would appreciate the assistance of an independent children's lawyer specifically to interact with X notwithstanding that X whilst residing with the father is clearly in an environment where the influence of the mother and the father is not balanced. However, that is pretty much how X has been living life since separation.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 24 April 2023
0
1
0